Delhi District Court
K. I. Pavunny vs . Asst. Collector (Hq), Central Excise ... on 22 July, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA, LD. ADDITIONAL
SESSIONS JUDGE01, PATIALA HOUSE COURTS,
NEW DELHI
ENFORCEMENT DIRECTORATE V. KANWAR BHAN DHAMIJA
APPEARANCES
Present: Mr. Naveen Matta, Ld. Special PP for the Directorate of
Enforcement.
Mr. Naveen Malhotra, Advocate for the respondent.
22.07.2013
ORDER
1. This criminal revision filed by the Enforcement Directorate is assailing an order dated 26.7.2010 passed by Sh. Ajay Pandey, Ld. ACMM, New Delhi whereby he was pleased to discharge the accused / respondent in the complaint filed u/s 56 of the Foreign Exchange Regulation Act, 1973 r/w section 49 (3) (4) of the said Act.
2. In a nutshell, it is the case of the prosecution that on 06.11.1991 the officers of DRI conducted a search at the residential premises 1608, Outram Lanes, Kingsway Camp, Delhi in occupation of respondent and his brother Pramod Kumar Dhamija (since PO) as a result thereof foreign exchange of US $ 5120, Kuwaiti Dinner 470, UAE Dhiram 100, Travellers cheques of UK Pounds 220 and US $ 300 besides certain documents; Indian currency of Rs.3,14,800/ and 7 drafts of US $ 1,20,000/ issued from banks in Dubai were recovered and seized as mentioned in the Panchnama dated 06.11.1991; that the said foreign exchange and Indian currency were seized u/s 38 of the FERA detailed in the Panchnama dated 07.11.1991; that during September and October, 1991 accused Kanwar Bhan Dhamija and Enforcement Directorate v. Kanwar Bhan Dhamija Page 1 of 7 2 Pramod Kumar Dhamija were not authorized dealers in Foreign Exchange in India nor there was any general or special permission from the Reserve Bank of India to deal in Foreign Exchange in violation of Section 8 (1) of FERA 1973; that the accused persons in terms of provisions of Section 61 (ii) of FERA were given notice to explain their stand and the accused persons failed to produce any permission from the RBI. Thus, the present complaint u/s 56 of FERA read with section 8(1) and section 49 (3) (4) of FERA was filed. The cognizance of the said complaint was taken by, the then, Ld. ACMM, New Delhi vide order dated 30.10.2001.
3. It may be indicated that the present case is governed by Chapter XIXB of Cr.P.C. providing for "trial of warrant cases" and since the complaint had been filed by public servant in discharge of public duties no pre summoning was led. However, at the stage of pre charge evidence, the prosecution choose to examine three witnesses, namely:
N. P. Seshan, Enforcement Officer during the relevant time who deposed that he took over the seized material from V. K. Budhiraja, Officer of the DRI vide Panchnama Ex.PW 1/A and other documents Ex. PW 1/B1 to Ex. PW 1/B14. He testified that accused was summoned vide notice Ex. PW 1/C and on 07.11.1991 he appeared and made voluntary statement u/s 40 of the FERA, 1973 running into 13 pages, signed by the accused and then he was arrested vide memo Ex. PW 1/D. This witness despite several opportunities could not be produced to complete his examination in chief and thus would not tendered for cross examination by the accused.
4. PW2 was R. K. Dubey, Enforcement Officer during the relevant time. He testified that he issued summons to the accused Ex. PW 2/A and coaccused P. K. Dhamija (PO) appeared before him and tendered his voluntary statement u/s 40 of the FERA Ex. PW 2/B. Similarly, he Enforcement Directorate v. Kanwar Bhan Dhamija Page 2 of 7 3 testified that summons were issued to Kanwar Bhan Dhamija, accused /respondent Ex. PW 2/C in response to which he made a voluntary statement running into 3 pages Ex. PW 2/D. He testified that during the investigation, he further issued a notice Ex. PW 2/E to K. D. Dhamija, respondent / accused who made another statement before him Ex. PW 2/F. PW 3 was Niranjan Subudhi, Enforcement Officer who testified that OPN Ex. PW 3/A was issued by R. K Ajmani, the then CEO in response to which a reply was given by Kanwar Bhan Dhamija Ex. PW 3/B and since the accused persons failed to furnish any permission from the RBI, complaint Ex.PW 3/C was filed. It is pertinent to mention here that PW2 was cross examined by the accused while PW3 was tendered for cross examination but the respondent chose not to cross examine him.
5. Ld. ACMM vide impugned order dated 26.07.2010 inter alia holding that evidence of PW1 cannot be read in evidence against the accused, opined that there was no evidence, which if remained unrebutted, would warrant the conviction of the accused and thus discharged him.
6. In the present revision, the impugned order inter alia is assailed on the grounds that Ld. MM failed to appreciate the voluntary statements of the accused persons Ex. PW 2/B, Ex. PW 2/D and Ex. PW 2/F during the investigation that contained evasive denials by the respondent / accused; and the Ld. MM failed to take into account the statutory presumptions u/s 72 and 73 of FERA, 1973; and the impugned order is contrary to law settled by several pronouncements of the Apex Courts. Reliance has been placed on the decisions in K. I. Pavunny Vs. Asst. Collector (HQ), Central Excise Collectorate, Cochin 1997 Supreme Court Cases (Cri) 444, Gulam Hussain Shaikh Chougule Vs. S. Reynolds, Supdt. of Customs, Marmgoa, 2001 VIII AD Enforcement Directorate v. Kanwar Bhan Dhamija Page 3 of 7 4 (S.C.) 715, Surjeet Singh Chhabra Vs. UOI, 1997 (89) E. L. T. 646 (SC), Rehmantullah Vs. Narcotics Control Bureau, 2008 V AD (Cr.) (DHC) 451, Kanhaiyalal Vs. Union of India, 2008 I AD (Cr.) (SC) 277, Naresh J. Sukhawani Vs. Union of India, 1996 (83) E.L.T. 258 (S.C.), Sanghi Brother (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & Ors., (2008) 10 Supreme Court Cases 681.
7. I have heard Ld. Special PP for the appellant / state and Sh. Naveen Malhotra, Ld. counsel for the respondent. I have also perused the relevant record of the case.
8. Without much ado, the impugned order passed by the Ld. ACMM, New Delhi cannot be sustained in law. Although there could be no quarrel with the line of reasoning that evidence of PW1 cannot be read against the respondent/ accused as the evidence of PW1 was not concluded and / or he was not produced for cross examination or tendered for cross examination by the respondent/ accused, Ld. MM committed an illegality in as much as he failed to take into account the statements made by the respondent / accused as well as coaccused (since PO) vide Ex. PW 2/D, Ex. PW 2/E and Ex. PW 2/F coupled with the fact that recovery of seized articles had taken place from their residence. Moreover, in response to notice Ex. PW 3/A, respondent / accused failed to produce any general / special permission from the RBI enabling to deal with foreign exchange in the manner that he was doing along with the coaccused P. K. Dhamija (PO). There is no gain saying that statement made under Section 108 of the Customs Act is admissible in evidence and the issue whether or not it was made voluntary could only be gone into trial.
9. Further, needless to state that court at this stage of framing charge is exercising a limited jurisdiction to find out whether a prima facie case is made out and it cannot delve into the matter for the Enforcement Directorate v. Kanwar Bhan Dhamija Page 4 of 7 5 purposes of appreciation of evidence. In my view, I am fortified by the decision in Krishan v. R. K. Virmani, Crl. Revision petition no. 516/08 dated 24.04.2012 decided by Hon'ble Judge of High Court of Delhi wherein it was held:
10. SubSection (1) of Section 244 Cr.P.C. employs the words 'shall' and 'may'. So when these two words are used together in SubSection (1) of Section 244 Cr.P.C., in the sense that they are generally used, denote that words "the Magistrate shall proceed to hear" would mean that the Magistrate is under a duty to hear the witnesses at the precharge stage. However, these witnesses are the ones that 'may' be produced by the prosecution in support of their case thus, the prosecution is under no duty to produce all its witnesses at this stage. Further under SubSection 2 of Section 244 Cr.P.C. the Magistrate is under no obligation to summon any witness of his own. It is only on the application of the prosecution that the witnesses are produced at this stage. Thus, it is clear that at the precharge stage the discretion to produce a witness lies with the prosecution and not the court or the accused. Further, the prosecution at this stage needs to satisfy the court of the existence of a 'prima facie; case for the purpose of framing charges.
17. The contention of learned counsel for the Petitioner at this stage is that the statement was not recorded under Section 244 Cr.P.C. at the pretrial stage and hence, inadmissible as evidence for framing charges. The reliability of the statement will have to be examined during trial. At this stage, it is sufficient to hold that the statement is admissible without examining the co accused as a witness if the person before whom the confession is made is examined under Section 244 Cr.P.C. As can be observed from the conjoint reading of the judgments in ......(case referred), a statement recorded by Customs officer under section 108 of the Customs Act, 1962 is admissible in evidence and not hit by provisions of Article 20 (3) of the Constitution or Section 25 of the Evidence Act. Further, such statement is presumed to be truthful as it is recorded under a proceeding which is judicial in nature and if upon such statement a prima facie case can be made out for framing the charge, the Magistrate is well within his powers to order framing of charges.
Enforcement Directorate v. Kanwar Bhan Dhamija Page 5 of 7 610. It must be borne in mind that under section 245 (1) Cr.P.C. after taking all evidence pursuant to section 244 Cr.P.C., the Magistrate may discharge the accused if he finds that no case is made out against the accused or the evidence if remain unrebutted would not warrant his conviction. It is section 246 Cr.P.C that empowers the Magistrate to frame charge if there are grounds for presuming that accused has committed offence triable under that Chapter.
11. It is well settled that 'trial is a judicial proceeding before the Court which ends in conviction or acquittal'. The trial starts when charge is framed against the accused. The proceedings before the charge is framed, as in the present warrant case, are in the nature of judicial proceedings defined by section 2 (i) of the Code that includes 'any proceedings in the Court of which evidence is or may be legally taken on oath'. Now, although section 244 of Cr.P.C. does not provide that accused on summoning has a right to cross examine the complainant or his witnesses, such legal right inheres at the stage of such judicial proceedings before the matters come for consideration of charge under section 245 and 246 of the Code. Reference can be had to decision in Ajoy Kumar Ghose v. State of Jharkhand, 2009 CRI. L. J. 2824. In the cited case, it was further explained that:
".......in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. On the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate Enforcement Directorate v. Kanwar Bhan Dhamija Page 6 of 7 7 proceeds to dis charge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge....."
12. To sum up, what is legally discernible is that it is section 246 of the Code that lays down conditions for a full fledged trial and not section 244 of the Code. The prosecution shall now be within its rights to examine all or few of the witnesses referred in the list filed alongwith complaint besides PW2 and PW3.
13. In the said view of the discussion the impugned order dated 26.07.2010 is hereby set aside. The present revision petition is allowed. The case is remanded back to the Ld. Trial Court for further inquiry/trial as per law. The parties are directed to appear before the Ld. Trial Court on 01.08.2013.
14. The Trial Court Record alongwith copy of this order be sent to the court concerned.
15. The present revision petition be consigned to record room.
ANNOUNCED IN THE OPEN COURT (Dharmesh Sharma)
TODAY i.e. 22.07.2013 ASJ01/PHC/New Delhi
Enforcement Directorate v. Kanwar Bhan Dhamija Page 7 of 7